Table Of ContentJudging and Emotion
Judging and Emotion investigates how judicial officers understand, experience,
display, manage and deploy emotions in their everyday work, in light of their
fundamental commitment to impartiality.
Judging and Emotion challenges the conventional assumption that emotion
is inherently unpredictable, stressful or a personal quality inconsistent with
impartiality. Extensive empirical research with Australian judicial officers
demonstrates the ways emotion, emotional capacities and emotion work are
integral to judicial practice. Judging and Emotion articulates a broader
conception of emotion, as a social practice emerging from interaction, and
demonstrates how judicial officers undertake emotion work and use emotion
as a resource to achieve impartiality. A key insight is that institutional
requirements, including conceptions of impartiality as dispassion, do not
completely determine the emotion dimensions of judicial work. Through
their everyday work, judicial officers construct and maintain the boundaries
of an impartial judicial role which necessarily incorporates emotion and
emotion work.
Building on a growing interest in emotion in law and social sciences, this
book will be of considerable importance to socio-legal scholars, sociologists,
the judiciary, legal practitioners and all users of the courts.
Sharyn Roach Anleu is Matthew Flinders Distinguished Professor, Judicial
Research Project, College of Humanities, Arts and Social Sciences at
Flinders University, Adelaide, Australia.
Kathy Mack is Emerita Professor of Law, Judicial Research Project, College
of Business, Government and Law at Flinders University, Adelaide,
Australia.
Judging and Emotion
A Socio-Legal Analysis
Sharyn Roach Anleu
and Kathy Mack
First published 2021
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2021 Sharyn Roach Anleu and Kathy Mack
The right of Sharyn Roach Anleu and Kathy Mack to be identified as
authors of this work has been asserted by them in accordance with
sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record has been requested for this book
ISBN: 978-1-138-89302-3 (hbk)
ISBN: 978-1-315-18004-5 (ebk)
Typeset in Times New Roman
by MPS Limited, Dehradun
Contents
List of illustrations ix
Preface x
Glossary xv
1 Introduction 1
Introduction 1
Judges and judging 2
Conceptualising emotion 4
Emotion as social practice 6
Emotion work and feeling rules 8
Emotion work and professions 10
Judging, emotion and emotion work 12
Outline of chapters 14
Researching emotion 17
2 Emotion and everyday judicial work: the context 27
Introduction 27
Court organisation 27
Everyday work 30
Case volume, time pressure and unpredictability 31
Court design and (in)formality 32
Court and trial participants 33
Parties, litigants and criminal defendants 34
Unrepresented litigants 35
Witnesses 36
Jurors 37
Legal representatives 38
Highest courts and appeals 39
vi Contents
Sentencing 40
Case types 42
Sexual assault 42
Domestic/family violence 43
Childrens/youth 44
Civil and small claims 45
Coroners 46
Family law 46
Migration and refugee 47
Conclusion 48
3 Judicial impartiality, emotion and empathy 61
Introduction 61
Impartiality 62
Judicial impartiality in practice 63
The judicial oath 64
Keeping an open mind 65
Putting aside bias and emotion 67
Empathy and judging 70
Empathy in judicial practice: empirical findings 72
Impartiality and empathy 74
Judicial tears 76
Compassion 77
Conclusion 82
4 Judicial emotion: experience, display and management 88
Introduction 88
Judicial emotion experience 89
Interaction with legal representatives 91
Kinds of decisions 94
Judicial emotion display 98
Neutral display and dispassion 99
Deep and surface acting 101
Judicial emotion and judicial authority 102
Judicial emotion self-management 104
Self-talk 105
Adjournment 106
Contents vii
Debrief 108
Humour 109
Work-family boundaries 111
Organisational emotion management 114
Conclusion 117
5 Judicial emotion work: others’ emotions 123
Introduction 123
Anticipate, predict, avert emotion 126
Awareness of participants or circumstances 126
Interpersonal approaches and resources 130
Court formality and civility 134
Allow expression of emotion 135
Types of participants 136
Sentencing and remorse 139
Judicial management after a participant’s emotion display 143
Articulating formal procedures and feeling rules 143
Taking breaks 146
Use own emotion or demeanour 147
Other resources 149
Conclusion 151
6 Professional regulation of judicial emotion 156
Introduction 156
Guidelines and codes 157
Judicial conduct complaints and discipline 159
Australia 161
England and Wales 165
United States of America 167
Fair hearing: judicial emotion and conduct 169
Judicial performance evaluation 172
Other professional guidance 174
Judicial education 175
Benchbooks 177
Judicial writing and speeches 177
Role models, shared experience and court culture 178
Conclusion 180
viii Contents
7 Conclusion 190
Introduction 190
Judicial perception and experience of emotion 190
Judging and emotion work 191
Self-talk 191
Demeanour 192
Humour 193
Other resources 193
Empathy 194
Emotion work: interconnections and boundaries 195
Feeling rules and regulation 195
Emotion work, gender and judging 196
Conclusion 198
Appendix: research design and data 202
Index 209
Illustrations
Figures
3.1 Magistrates’ and judges’ assessment of empathy by gender
3.2 Magistrates’ and judges’ assessment of compassion by gender
Table
6.1 Resolution of complaints about judicial officers: New South Wales, July 2011
to June 2019
